Wednesday, 30 November 2016

Harare Magistrate, Vakayi Chikwekwe gas referred Prophet Walter Magaya's matter to the Constitutional Court for determination on whether the state is lawfully authorised to proceed to trial when a complainant has formally withdrawn a case on the basis that he or she had given false allegations.

For the state, Michael Mugabe applied for the accused person to be indicted on rape charges for trial at the High Court.However, Advocate Thabani Mpofu, who is now leading the defence quartet of lawyers representing Magaya, opposed the application for indictment on the basis that the complainant had freely chosen to withdraw the case, saying she had lied about the rape allegations.Advocate Mpofu requested to put the witness to the stand to lead evidence on that score which was opposed by Mugabe.Mugabe said there was no legal provision which allows the defence to use a state witness or complainant to buttress its case or an accused person to challenge his indictment.Mr Chikwekwe ruled that the matter was between the state versus Magaya and the state is seized with the responsibility of declining or proceeding to prosecute.

He said the defence is at liberty to proceed to make an application for referral of the sticking issues to the Constitutional Court and summon any witnesses it wishes.

It was agreed by both parties that by 2 December, the defence should have filed its application for referral to the Constitutional Court, while the state will file by the 12th of December 2016.The arguments will be heard before a different magistrate on the 19th of December.